March 18 2022
By Rehan Piracha
Federal Minister for Information Fawad Chaudhry on Friday said the government would seek advice from the Supreme Court over the legal status of the vote of defecting party legislators as a result of horse-trading and whether such members could face a lifetime disqualification under the Constitution.
However, experts responded that a reference here would be a futile exercise as the procedure for disqualification of parliamentarians for defection was settled without ambiguity in the Constitution.
The minister said the government has decided to file a reference under Article-186 (advisory jurisdiction) in the Supreme Court for interpretation of Article 63-A which is related to disqualification of parliamentarians on the grounds of defection. He said the Supreme Court would be requested to hear this reference on a daily basis and give a verdict.
“The Supreme Court would be asked for its opinion about the members of a party who were explicitly involved in horse-trading and changed their allegiances in exchange for money, what would be the legal status of their vote,” he said in a series of tweets.
“The apex court would be requested to decide that the members who changed their allegiances for economic benefits be disqualified for life or they would be allowed to run for re-election,” the minister said.
No ambiguity in disqualification process over defection: Justice (r) Tariq Mahmood
According to Justice (retd) Tariq Mahmood, the advisory jurisdiction of the Supreme Court is invoked when there is any ambiguity regarding a question of law. “The procedure for disqualification of a defecting parliamentarian is clearly laid out under Article 63-A,” Mahmood told Voicepk.net.
The defection clause would take effect only and not before when a parliamentarian actually votes or abstains from voting in the House contrary to any direction issued by the parliamentary party to which he belongs, Mahmood explained.
PTI MNA will not attend no-trust session
In a press conference on Friday, Federal Interior Minister Sheikh Rashid Ahmed said the prime minister had instructed party members of National Assembly not to come to the session of the no-confidence motion requisitioned by the opposition parties.
Asked whether the reference is intended to get the apex court’s nod to allow the National Assembly Speaker from restricting PTI MNAs from voting or attending the no-trust as per party directions, Mahmood said a political party could not bar its legislators from his discharging their constitutional duty of attending a session of assembly but could only direct them to abstain or vote.
“There is no point in having a defection clause in the Constitution if the Speaker gets the power to bar legislators from voting contrary to party directions,” he said. “You cannot punish a man for theft until he/she actually steals something first and not for just thinking of committing theft,” he explained.
According to the former Supreme Court Bar Association president, the apex courts have also settled the question of disqualification of a parliamentarian under Article 63-A. “A parliamentarian disqualified under Article 63-A cannot run for re-election for the term of the assembly but can be a candidate in a fresh term of the assembly,” Mahmood said.
Horse trading to be dealt under Section 167 of Election Act
Speaking to Voicepk.net, Kanwar Dilshad, former secretary of the Election Commission, said there is no specific mention of horse-trading in the Constitution and the election laws.
“The allegations of horse-trading of assembly members are dealt with under section 167 of the Election Act 2017 relating to corrupt practices,” Dilshad pointed out. The offence carries a punishment of three years imprisonment, he added.
However, he said proving allegations of corrupt practices such as horse-trading in a court of law was a quite difficult
However, he said proving allegations of corrupt practices such as horse-trading in a court of law was a quite difficult and long-drawn process.
The former election commission secretary said the government was unlikely to get any relief against the no-trust motion by invoking the advisory jurisdiction of the apex court which was non-binding upon it.
The PTI government has claimed that opposition parties were involved in horse-trading of assembly members in an attempt to muster votes for the passage of the no-confidence motion against the prime minister. A number of PTI MNAs appeared before the media while staying at Sindh House in Islamabad. These PTI MNAs claimed that they were staying at Sindh House due to security threats from the government. A mob of PTI supporters also protested outside the Sindh House and attempted to force entry into the premises.
The Speaker of National Assembly has not announced a date of the no-trust session, which must be held before March 28 under the law.